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| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA441/2013 [2015] NZCA 176 |
| BETWEEN | COLIN BIDOIS, JENNY ROLLESTON, TAARI NICHOLAS, PATRICK NICHOLAS, CHRISTOPHER (KIRITOHA) TANGITU, RAWIRI KUKA AND SHADRACH ROLLESTON AS THE MANDATED REPRESENTATIVES OF THE HAPŪ OF PIRIRAKAU |
| AND | RAPATA (ROBERT) LEEF, STEPHANIE TERIA TAIAPA, NADINE HORINA PIRAKE, KAINE RAROA TAIAPA, DARREN WILLIAM LEEF, NEIL HIRAMA AND PANIA ANEISHA BROWN AS THE MANDATED REPRESENTATIVES OF THE HAPŪ OF NGᾹTI TAKA |
Hearing: Further Submissions: | 18 November 2014 5 December 2014 |
Court: | Miller, Cooper and Simon France JJ |
Counsel: | F M R Cooke QC and M J Sharp for Appellants |
Judgment: | 18 May 2015 at 2.15 pm |
JUDGMENT OF THE COURT
AThe appeal is allowed and the arbitral award is reinstated.
BThe respondents must pay the appellants’ costs for a standard appeal on a Band A basis plus the usual disbursements.
CThe costs award in the High Court is quashed and the issue of costs is remitted back.
____________________________________________________________________
REASONS OF THE COURT
(Given by Simon France J)
TABLE OF CONTENTS
Introduction[1]
The arbitration[9]
(i) Preceding events[9]
(ii) The arbitration agreement[14]
(iii) The implementation[15]
(iv) What happened in relation to disclosure of Mr Hingston’s connection to Pirirakau[21]
(v) Mr Rawiri Kuka becomes a witness[28]
(vi) Opportunity to comment on documents[33]
The appeal issues[41]
Issue one – was the dispute legally capable of being the subject of an arbitration agreement?[42]
Issue two –natural justice issues[59]
(a) Was Mr Hingston’s conflict waived?[59]
(b) Can this conflict be waived?[66]
(c) Did Ngāti Taka have insufficient opportunity on documents tabled by Pirirakau? [83]
Conclusion[95]
Costs[100]
Introduction
The parties to this appeal are representatives of two hapū – Pirirakau (appellants) and Ngāti Taka (respondents) – of the Bay of Plenty based iwi Ngāti Ranginui. In 2011 the two hapū entered into a one‑off arbitration agreement to settle a dispute between them over who held mana whenua over certain lands between 1840 and 1865.
The dispute had a financial element to it. At the time of the arbitration, a settlement between the Crown and Ngāti Ranginui concerning historic grievances was imminent. It was known that the settlement would include cash compensation for lands either confiscated or compulsorily purchased in the 1860s in breach of the principles of the Treaty of Waitangi. The eight hapū of Ngāti Ranginui had agreed that the major portion of this money would be allocated amongst the hapū in proportion to the share of land each hapū had lost by reason of the Crown actions. The determinant of which hapū’s land had been taken by the Crown was who had mana whenua over the land during the years 1840 to 1865. Pirirakau and Ngāti Taka claimed mana whenua in relation to the same tracts of land. Hence, the reference to arbitration.
Resolution of the dispute would not turn on issues as to who occupied the land. It was largely common ground that the paramount chief at…
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- AGLC
- Bidois v Leef [2015] NZCA 176
- Case
- [2015] NZCA 176
- Decision Date
CaseChat Overview and Summary
The court's analysis hinged on whether the dispute arose from a defined legal relationship, a term which the court interpreted as requiring the possibility of a legal remedy. The court examined the nature of the dispute resolution agreement and found that it did not provide for the allocation of settlement proceeds, unlike the adjudication procedure. Instead, the resolution panel could only determine mana whenua status, a historical and cultural matter that did not give rise to the possibility of a legal remedy. The court concluded that the dispute resolution agreement did not provide for the arbitration of a dispute in respect of a defined legal relationship, and therefore did not constitute an arbitration agreement under the Act. This interpretation aligned with the broader understanding of "defined legal relationship" as encompassing any legal dispute that could lead to a legal remedy, rather than merely a historical or cultural dispute.
In reaching its decision, the court emphasised the necessity for a legal relationship that could result in a legal remedy for the dispute to qualify as an arbitration agreement. The court's reasoning was influenced by previous case law, particularly the discussion in Methanex Motunui Ltd v Spellman, which highlighted the broad interpretation of "defined legal relationship" while still requiring a legal nature to the dispute. The court found that the dispute resolution agreement in Bidois v Leef did not satisfy this requirement, as it did not allow for the allocation of resources or the entitlement to a legal remedy. Consequently, the court ruled that the agreement did not meet the statutory definition of an arbitration agreement. The court's judgment clarified the scope of the term "arbitration agreement" and reinforced the importance of a legal relationship in qualifying a dispute for arbitration under the Act.
The final orders of the court were that the agreement between the parties did not constitute an arbitration agreement within the meaning of the Arbitration Act 1996, and therefore, the court did not have jurisdiction to enforce the arbitration award. The court's decision underscored the need for a clear and defined legal relationship to qualify a dispute for arbitration, ensuring that the scope of the Act is properly applied in cases involving historical and cultural disputes.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The Act governs arbitrations that have their genesis in what is called an arbitration agreement. That term is defined in the Act, and Andrews J’s decision turns on her Honour’s assessment that the parties’ agreement did not come within the definition. The definition provides:[9]arbitration agreement means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not(emphasis added)[9]Arbitration Act 1996, s 2(1), definition of “arbitration agreement”. Her Honour concluded that the dispute between the parties did not arise in respect of a defined legal relationship, and therefore the agreement was not an arbitration agreement within the meaning of the Act. The key aspects of the judgment read:[10][64] In my view, the only way in which Ngāti Taka and Pirirakau could be said to have submitted “a dispute in respect of a defined legal relationship” to arbitration is if the resolution panel’s decision as to mana whenua status affects the allocation of the proceeds of the Treaty of Waitangi settlement. If it does, then there will be an entitlement to a legal remedy. If it does not, then there is no entitlement to a legal remedy. The panel’s decision will be as to a historical, cultural dispute, but that would not make it an arbitration award.[65] On the face of the dispute resolution agreement, the resolution panel’s decision cannot affect the allocation of settlement proceeds. The panel was to decide which hapū and its rangatira had mana whenua status from 1840 to 1865. By contrast, the adjudication panel in the adjudication procedure under Stage 3 of the mana whenua process agreement was required to allocate the disputed resources. Thus the decision resulting from the dispute resolution agreement is not the same decision as that resulting from an adjudication: the dispute resolution agreement did not provide for allocation.[66] This points to the different legal effect of the dispute resolution agreement. While both Ngāti Taka and Pirirakau understood it to be equivalent to an adjudication under the mana whenua process agreement (albeit less costly and time consuming) it was not equivalent, either in substance or effect. All the resolution panel could do under the dispute resolution agreement was determine mana whenua status. They could not make any allocation decision. Their decision could not give rise to the possibility of a legal remedy.[67] The effect is that an adjudication pursuant to Stage 3 of the mana whenua process agreement has not been completed. Thus, while the dispute resolution agreement provided for the resolution of a historical, cultural, dispute, it did not provide for the arbitration of a dispute in respect of a defined legal relationship, and it could not, therefore, be an arbitration agreement under the Act.[10]Leef v Bidois, above n 1. The focus in [64] and subsequently on whether the arbitration would lead to an entitlement to a legal remedy stems from the discussion of defined legal relationship by Fisher J in Methanex Motunui Ltd v Spellman.[11] His Honour’s reasoning in that case was affirmed on appeal.[12] Fisher J had observed:[13][83] The next phrase traversed in argument was “a defined legal relationship”. Several factors suggest that this phrase has a particularly broad meaning. First, the relationship need not be contractual (“whether contractual or not”). Secondly, s 10(1) appears to envisage that arbitration agreements can embrace any dispute which the parties have agreed to submit to arbitration so long as the arbitration agreement is not contrary to public policy or, under any other law, is not capable of determination by arbitration. Thirdly, the survey of policy considerations and implied legislative intentions conducted earlier suggests that Parliament would not have intended to reduce the range of disputes previously amenable to arbitration.[84] Those considerations support the view that “defined legal relationship” is neither confined to relationships recorded in documents nor to formal relationships such as contracts, trusts or partnership agreements. Consistent with this view, it has been held that they include relationships between persons in breach of statutory duty and their victims: Hi‑Fert Pty Ltd v Kiukiang Maritime Carriers Inc (1997) 145 ALR 500 (arbitration clause upheld where dispute under Trade Practices Act 1974 (Aust), the Australian equivalent of the Fair Trading Act 1986 (New Zealand), appeal allowed on another aspect (1998) 149 ALR 142).[85] There must be some limitation imposed by the expression “defined legal relationship” if complete redundancy is to be avoided. As a bare minimum, the expression would seem to indicate that the dispute must be of a legal nature as distinct from a merely religious, cultural, academic, or social one. That would be consistent with the enforceability provisions of art 35(1) of the First Schedule which provides:35. Recognition and enforcement – (1) An arbitral award, irrespective of the country in which it was made, shall be recognised as binding and, upon application in writing to the High Court, shall be enforced by entry as a judgment in terms of the award, or by action, subject to the provisions of this article and of article 36.I take it from art 35(1) that for two individuals to have a “defined legal relationship” for present purposes there must be a relationship which gives rise to the possibility that one is entitled to some form of legal remedy against the other.[11]Methanex Motunui Ltd v Spellman [2004] 1 NZLR 95 (HC).[12]Methanex Motunui Ltd v Spellman [2004] 3 NZLR 454 (CA) at [60].[13]MethanexMotunui Ltd v Spellman, above n 11.